Weed smoking duo off the hook as court stops prosecution

16 May 2018 - 07:00 By Philani Nombembe
Image: 123RF\cendeced

Two Eastern Cape residents who have been using dagga for years breathed a sigh a relief after the high court stopped their prosecution.

Kailyn Austin and Darryle Clarke were charged in the East London Magistrates’ Court with dealing in dagga and magic mushrooms.

The two were bust‚ in separate incidents‚ by an undercover police officer posing as a student‚ complete with school uniform. But the pair lodged an application for stay of prosecution in the High Court in Grahamstown‚ citing Justice Minister Michael Masutha as one of the respondents.

They had hoped to find reprieve in the judgment delivered by the High Court in Cape Town last year‚ which declared sections of the Drugs and Drug Trafficking Act unconstitutional.

The judgment paved the way for “adults” to cultivate dagga for “personal consumption” in private dwellings and gave parliament 24 months to correct the defects. According to the judgment‚ adults can use this as a defence if found in possession of dagga while parliament remedies the legislation.

However‚ the prosecution appealed the ruling and it is pending before the Constitutional Court.

In his judgment in Austin and Clarke’s case‚ Judge Murray Lowe said other divisions of the high court had stayed prosecution in similar circumstances and “it would be wasteful of costs affecting the public purse‚ and contrary to the interests of justice were the prosecution to proceed in these matters pending the outcome of the Constitutional Court”.

“[Austin and Clarke] state that they have been smoking marijuana for many years without harm‚ sometimes eating same for medical reasons and as part of their spiritual belief and practices‚” the judgment reads. “In the circumstances of the matter I am persuaded that‚ notwithstanding‚ the opposition of [the director of public prosecutions]‚ a stay of proceedings in one form or another is justified.”

But Austin and Clarke’s shield from prosecution might yet go up in smoke.

Lowe ordered them to bring an application in the high court challenging the constitutionality of the sections of legislation around possession of magic mushrooms within 60 days of judgment‚ failing which they will be prosecuted.